R v Morgan - [2022] NZHC 790

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2020-025-419

[2022] NZHC 790

THE QUEEN

v

ANARU MORGAN

Hearing: 13 April 2022

Appearances:

M B Brownlie for Crown H T Young for Defendant

Judgment:

13 April 2022

SENTENCING REMARKS OF MANDER J

[1] Mr Morgan, I will get you to stand at the conclusion not now, at the conclusion of my sentencing remarks.

[2] Anaru Morgan, you are for sentence on a charge of detention for the purposes of sexual connection upon which you were found guilty by a jury.1 You were acquitted on charges of unlawful sexual connection and rape arising out of the same incident.

Background

[3]It is necessary that I set out the circumstances of your offending.

1 Crimes Act 1961, s 208(b) — maximum penalty 14 years’ imprisonment.

R v ANARU MORGAN [2022] NZHC 790 [13 April 2022]

[4] You contacted a sex worker and arranged to meet with her at a motel room for the purposes of using her services. Shortly after your arrival, you became embroiled in a dispute at the doorway to the motel unit over the need for payment to be in cash. The victim told you to go and get cash but you refused. The victim tried to push you out the door and a struggle took place. You responded by pushing the door closed, trapping her arm in the doorway. Once inside the unit you pushed the victim onto the bed. The door was locked and you kept the key in your pocket.

[5] A further attempt by the victim to physically push you out of the motel unit that resulted in another physical struggle was abandoned after you referred to what she understood to be your membership of a gang, and which she interpreted as a threat. As a result of the situation the victim found herself, she changed her approach and said to you, “Okay, I do for you, but you not hurt me”. She described in her evidence how with some reluctance she had to give in to you because of her fear of being harmed and your apparent association with a gang. You are a physically large man, while the victim was a small 63-year-old woman who suffers from Bell’s Palsy.

[6] Insofar as your acquittal on the charges of unlawful sexual connection and rape are concerned, I consider that outcome likely resulted from how the victim subsequently decided to handle the situation and the fact you had contacted her for the purposes of having sexual relations. That evidence may have raised a reasonable doubt about whether there were not reasonable grounds for you to believe the victim was consenting at the time the subsequent sexual acts took place, although your evidence of having paid her is difficult to reconcile with the circumstances that led to the victim’s detention.

The three strikes legislation

[7] The charge upon which you were convicted, detention for the purposes of sexual connection,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Morgan

Details

AGLC: R v Morgan [2022] NZHC 790
Case: [2022] NZHC 790
Decision Date: 13 April 2022

CaseChat Overview and Summary

Anaru Morgan was convicted of detention for the purposes of sexual connection, and acquitted on charges of unlawful sexual connection and rape. The court considered the applicability of the three strikes legislation, which mandated a sentence of 14 years' imprisonment, the maximum penalty for the offence. The court found that the sentence would be disproportionately severe and manifestly unjust, in breach of the New Zealand Bill of Rights Act. The court therefore sentenced Morgan to six years' imprisonment, with a minimum period of imprisonment of four years. The court considered the aggravating and mitigating factors, including Morgan's previous convictions for indecent assault and other violence, and his disadvantaged background. The court found that Morgan's offending was moderately serious, but the disparity between the sentence under the three strikes regime and the sentence that would otherwise have been imposed was grossly disparate. The court concluded that the imposition of a sentence that was eight years longer than that which would otherwise have been imposed met the test for disproportionately severe treatment or punishment.

Orders